Terms and Conditions of Use

By accessing our website or registering as a user of the application known as ‘Evolt Active’ (the app, or our app) provided by Evolt IOH Pty Ltd ACN 609 604 908, you agree to be legally bound by the following terms and conditions (these Terms).

A reference in these terms and conditions to ‘we’, ‘us’ or ‘our’ is a reference to Evolt IOH Pty Ltd ACN 609 604 908 and its officers, employees, agents, successors and assigns.

Your Declaration

By accessing our website or registering an account to use the app, you must comply with these terms and conditions. If we consider that you’re not complying with these requirements, we may take any action that we are legally entitled to take, which includes (without limitation) deleting or suspending your account registration.

By registering an account to use our app, you:

confirm that all the information you’ve given us in connection with your registration is complete, true and correct at the time it’s given;

confirm that you’ve read and understood all the information in these Terms and that you agree to act in accordance with them;

accept that it’s your responsibility to ensure that the personal information you provide to us is kept current. Any changes to your name, address, email address, phone numbers, payment options or banking details should be sent to us as soon as practicable;

agree to maintain a current email address and phone number by which you can be contacted for the duration of your registration on our app, and through which we may communicate formally with you.

You acknowledge that you may have your registration or account terminated or suspended if we determine that any of the above statements are untrue, or you are otherwise in breach of these terms and conditions.

Use of our Website and App

You agree that you will:

not upload or post any of the following content (Prohibited Content) anywhere on our website or the app:

confidential information or other information that you do not have the right to disclose (whether under contractual obligation or otherwise);

content that may be misleading or deceptive;

negative or defamatory statements that may harm our reputation;

advertising, marketing or promotional material, or other unauthorised commercial communications (such as spam);

content which you do not have the right to upload, post, email or otherwise transmit, such as content which is protected by copyright, patent, trade mark, service mark or any other proprietary right (unless you have express, written permission from the owner and, where applicable, include appropriate acknowledgement);

material which contains a virus or other harmful (or potentially harmful) code;

content that discusses illegal activities, with the intent to commit (or encourage others to commit) such illegal activities;

content that contains obscene or offensive language or images (such as pornography or nudity);

content that is unlawful; or

content that is otherwise harmful (or potentially harmful) to us or other users of the app.

not collect the personal information of other users in any way;

not send unsolicited messages to other users;

not impersonate another person or organisation;

notify us immediately of any unauthorised use of your app account or any purported breach intellectual property rights.

We reserve the right to remove any content (not only Prohibited Content) from our app in our absolute sole discretion, but are not required to do so. If we do remove content you have posted, we may not notify you that we have done so. You acknowledge that we do not screen or moderate all content posted to the app by users and therefore cannot guarantee the prompt removal of any Prohibited Content.

Intellectual Property Rights

With the exception of the ideas and comments shared with us, and the content posted on or in connection with the app, by app users who have the appropriate authority to post or share the relevant information (the App User Content), we own, or have the right to use, all content provided or accessible on our website or and the app, including (without limitation) all text, software, data (including biometric data and data derived from that data), databases, reports, files, research, marketing and website content, sounds, graphics, designs, videos, photos, comments, replies, ideas, scripts, workouts, workout information, nutritional information, recipes, trademarks, branding, copyrights and patents (collectively, the Evolt Content).

By accessing the website, registering an account on our app or otherwise dealing with, or using our website and/or app in any way, you do not acquire any rights in
relation to the Evolt Content. For the avoidance of doubt, we at all times retain all rights in relation to the Evolt Content.

Only to the extent otherwise provided in these Terms, you agree not to duplicate, publish, sell, edit, display, modify, distribute, exploit or create derivative works from any of the Evolt Content without our express written consent (which may be withheld at our absolute sole discretion).

Subject to your compliance with these Terms, to enable you to access and use our website and app for the purposes that we intend for them to be used, we grant you a revocable, unassignable, non-exclusive, limited and personal licence to access and use the Evolt Content for your own personal, non-commercial use. We reserve our right to monitor your use of the Evolt Content and restrict or revoke our licence to you for any reason whatsoever.

The rights attaching to the App User Content is owned the app user that posted the relevant content. When posting any App User Content, you agree to grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, assignable and sub-licensable licence to use that App User Content posted by you for any purpose whatsoever, including (without limitation) commercial use. You acknowledge and agree that the App User Content is provided on a non-confidential basis and that we are under no obligation to provide you with any notice, compensation or acknowledgement in connection with our use of the App User Content. Any App User Content will at all times be dealt with in a manner consistent with our Privacy Policy.

In granting us the above licence, you warrant that you are the legal owner or licensee of the relevant App User Content and that you are authorised to post that content. You agree to indemnify us for any loss, claim, expense or damage incurred by us or made against us (as the case may be) in connection with a breach of any of the above warranties.

Third Party Sites

From time to time, we may provide links to third party websites, apps or other social media platforms (Third Party Sites). We do not endorse, monitor or have any control over the content provided on Third Party Sites or the practices of the persons who control the Third Party Sites. Accordingly, the use of any such links is entirely at your own risk and we do not accept any responsibility for the content, use or availability of the Third Party Sites.

Limitation of Liability

You are solely responsible for your use of our website and apps.

To the maximum extent permitted by the applicable law:

we do not make any warranties or representations other than those expressly set out in these Terms; and

all terms, representations and warranties that may be excluded by law
regarding our website and the app are expressly excluded from these Terms.

If any legislation implies in these Terms any term or warranty that cannot be excluded or modified, that term or warranty is included in these Terms.

To the maximum extent permitted by the applicable law, we expressly exclude liability for any:

loss, damage (whether direct, indirect, special, incidental, or consequential) or expense that you may incur or suffer (as the case may be) in connection with your use of, or inability to use, our website or apps;

loss, damage or expense that you may incur or suffer (as the case may be) as a consequence of any act or omission of any third party (including, without limitation, other app users, third party service providers and controllers of third party websites) regardless of whether the relevant acts or omissions occur on our websites or apps.

If any legislation or law implies into these Terms any term or warranty and also prohibits provisions in a contract excluding the application or exercise of that term or warranty then, to the maximum extent permitted by the applicable law, our liability for a breach of such a term or warranty will be limited, at our sole option, to any one or more of the following:

the supplying of the goods and services again; or

the payment of the cost of having the goods and services supplied again.

To the maximum extent permitted by the applicable law, if for any reason we are directly or indirectly liable to you in respect of any goods or services provided, our maximum aggregate liability in respect of all claims made by you will be the amount charged by us in respect of those goods and services.

From time to time, we may promote certain practices relating to health and fitness by for example, providing information relating to nutrition and physical activity. Such information is provided by us for informational purposes only and is not intended to, and does not in any way, constitute the provision of medical advice. Before acting in accordance with the information provided on our website or the app (in whole or in part), you should obtain the appropriate advice from a qualified medical professional and act in accordance with their advice.

Indemnity and Release

You agree to indemnify us against any expense, loss, damage or cost (on a solicitor and own client basis) that we may sustain or incur in connection with any:

breach of these Terms by you;

use by you of our website, app or any goods provided by us from time to time;

infringement or purported infringement by you of our intellectual property rights or the intellectual property rights of any third party; or

loss or damage to any property or injury to or death of any person caused (wholly or in part) by any act or omission by you.

To the maximum extent permitted by the applicable law, you agree to forever release us and hold us harmless from any and all claims or causes of action that you may have against us in connection with your access to the website or use of the app.

Privacy Policy

By accessing our website and registering to use the app, you agree to us collecting your personal information (including sensitive information) in accordance with our privacy policy (which is available on our website evoltactive.com) as amended from time to time. Please take the time to read our privacy policy as it contains important information relating to the collection, use, disclosure and storage of your personal information.

For the avoidance of doubt, you acknowledge and agree that your personal information will be disclosed to and used by any owner, lessee or licensee of Evolt 360 machines that you have your body composition analysed on for the purposes of providing you with the services that we provide. Whilst we will use our best endeavours to protect your personal information from misuse by those owners, lessees or licensees, we cannot guarantee the protection of your personal information. By registering an account with us on the app, you acknowledge that your personal information is required to be disclosed to the owners, lessees and licensees of the Evolt 360 machines for your body composition to be analysed and you consent to such disclosure being made. To the maximum extent permitted by the applicable law, we exclude all liability relating to the collection, use, disclosure or storage of your personal information by any such owners, lessees and licensees and you agree to assume any risk associated with their use of your personal information.

General Terms

By downloading our app of from a third party app store, you acknowledge that no contract is formed between you, us and the relevant third party app store and that the relevant third party app store is not responsible for any maintenance, or support services relating to our app.

We may make changes to the app and our policies and procedures from time to time. If a change is made that we consider to be material in nature, we will either email you or post a notification on our website and/or our app. If you do not agree with the changes made, you should discontinue using our app or accessing our website. If you continue using our app or accessing our website, you will be deemed to have agreed to the notified change to the maximum extent permitted by the applicable law.

Our agreement with you is governed by and interpreted in accordance with the laws of the State of Queensland, Australia, and you submit to the non-exclusive jurisdiction of the Courts of that State. You agree to waive any right to object to
proceedings brought in those courts for any reason.

To the maximum extent permitted by the applicable law, you agree to any information, notice, document, originating process or document relating to our website or app being given by electronic communications.

If any paragraph of these terms are prohibited by the applicable law or judged by a court to be unlawful, void or unenforceable, the relevant paragraph shall, to the extent required, be severed from these terms and rendered ineffective as far as possible without modifying the remaining provisions of these terms, and shall not in any way affect any other circumstances of or the validity or enforcement of these terms.

We may assign our rights and/or obligations pursuant to these Terms to any person without providing notice to you.

Any failure or delay by us to exercise a power or right does not operate as a waiver of the power or right and our exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.

These terms remain in effect regardless of whether you have discontinued accessing our website or app or have had your account deleted or suspended for any reason.